Breadcrumb navigation:

NO LONGER PLAYING NEVILS ADVOCATE: THE NINTH CIRCUIT CONSTRICTS APPELLATE REVIEW FOR INSUFFICIENCY OF EVIDENCE CLAIMS

Abstract: On March 19, 2010,
the U.S Court of Appeals for the Ninth Circuit in United States
v. Nevils held that a reviewing court hearing criminal appeals
on the grounds of insufficient evidence must resolve all factual
conflicts in favor of the prosecution and ask only if any rational
juror could have found the defendant guilty beyond a reasonable
doubt. This decision makes it more difficult for the Ninth Circuit
to reverse criminal convictions and ultimately preserves the jury's
proper role as the trier of fact.

Introduction

Earl Nevils was convicted of being a felon in possession
of firearms and ammunition, and he appealed his conviction to the
U.S. Court of Appeals for the Ninth Circuit.1 He argued that the
government did not present enough evidence that he knowingly
possessed firearms and ammunition.2 Agreeing with Nevils, a divided
panel found that there was insufficient evidence that he had
possessed the weapons knowingly, and it reversed the judgment and
remanded the case for a judgment of acquittal (Nevils
I).3 Shortly after the panel's decision, the U.S.
Supreme Court heard arguments in McDaniel v. Brown, a case
in which the Ninth Circuit had affirmed the granting of a habeas
petition due to insufficient evidence.4 Finding "ample"
evidence of guilt, the Court in McDaniel reversed the
Ninth Circuit in January 2010.5 After the Supreme Court heard
arguments in McDaniel, the Ninth Circuit reheard Nevils's
case en banc, and then following the Court's decision in
McDaniel, the en banc court ruled in Nevils's case that
the government presented sufficient evidence and affirmed his
conviction (Nevils II).6 The conflicting conclusions of the
panel and en banc court stem from different applications of the
same legal standard for insufficiency of
evidence.7 Which application a court chooses will
drastically impact the roles for juries and appellate courts in
future appeals.8

Part I of this Comment narrates Nevils's crime and
follows its journey through the legal system.9 Part II examines how
the Ninth Circuit panel and en banc court reached different
conclusions from supposedly the same legal standard and examines
the divergent effects of each.10 Finally, Part III explores the
policy interests in this debate and argues that for reasons
philosophical, practical, and constitutional, it is wise to limit
an appellate court's role in evaluating the sufficiency of
evidence.11

I. Nevils's Arrest and Appeals

The Nevils I panel and the Nevils II en
banc court both stated essentially the same
facts.12 On the night of April 14, 2003, Officers
Jason De La Cova and Jason Clauss of the Los Angeles Police
Department followed a suspect into an apartment complex in a
high-crime neighborhood of south Los
Angeles.13 Upon entering the complex, the officers
encountered an unlocked apartment, which the man whom they were
pursuing had considered entering.14

Inside, the officers saw, alone and asleep on a couch,
the defendant Earl Nevils.15 A loaded Tec-9 semi-automatic
weapon with a round chambered sat on his lap, and a .40-caliber
handgun, also loaded, also with a round chambered, leaned against
his right leg.16 Only a foot from the couch was "a coffee
table, laden with marijuana packaged for sale, ecstasy, over $500
in cash, and a cell-phone."17 Weapons drawn, Officers De La Cova
and Clauss swept the room and approached Nevils.18 As they drew
near, he awoke and, according to the testimony of Officer Clauss,
"appeared like he was going to, you know, grab towards his lap and
then he stopped and put his hands up."19 Officer De La
Cova, however, mentioned no such pause, instead testifying that the
events were "almost immediate" and that Nevils "jumped up as a
startled jump and rolled over onto the ground."20 After his arrest,
Nevils told a police sergeant: "I don't believe this shit. Those
motherfuckers left me sleeping and didn't wake
me."21

Although Nevils was only booked on the charge of
possession of marijuana for sale, he was eventually charged, tried
and convicted in federal court on a single count of being a felon
in possession of firearms and ammunition.22 The crime has
three elements: "(1) that the defendant was a convicted felon; (2)
that the defendant was in knowing possession of a firearm; and (3)
that the firearm was in or affecting interstate
commerce."23 Nevils twice sought acquittal due to
insufficient evidence under Federal Rule of Criminal Procedure
29.24 Both motions were
denied.25

Following his conviction, Nevils appealed to the Ninth
Circuit.26 The Nevils I panel stated, "We
review the entire record, 'viewing the evidence in the light most
favorable to the government,' and 'must determine whether any
rational jury could have found [the defendant] guilty of each
element of the crime beyond a reasonable doubt.'"27 The panel
acknowledged that it "must presume that the trier of fact resolved
any conflicting inferences in favor of the
prosecution."28

Nevils argued that he could not have knowingly possessed
the weapons for three reasons: (1) he was asleep when the police
arrived; (2) he had become drunk earlier in the day; and (3) there
was no evidence tying him to the firearms or other items in the
apartment besides his presence in the room.29 In contrast, the
government emphasized: (1) Nevils was in "actual possession" of the
firearms because they were touching him; (2) a prior arrest in the
same apartment shortly before this incident tied him to the
location; (3) his gang affiliation supported the jury's finding;
(4) one officer testified that Nevils had reached for his lap; and
(5) his statements to the sergeant after his arrest showed
"consciousness of guilt."30

The Nevils I panel focused on Nevils's first
argument.31 Rejecting the "tenuous distinction between
'actual' and 'constructive' possession," the panel vigorously
asserted that knowing possession cannot be proved by "mere
proximity."32 Thus the panel's inquiry into possession
"required a showing that Nevils had knowledge of the firearms and
the ability and intention to control them."33 The fact that the
two firearms, each loaded, each with a round chambered, were
touching him became less significant.34The "close
physical proximity of the guns to Nevils" was disregarded as "the
special circumstance" of Nevils's case.35The panel decided
that "the pivotal circumstance" was that "Nevils was
asleep."36

Because the inquiry focused on his knowing
possession and whether he could "control" the firearms, the panel
held, "The fact that the firearms were physically touching him is
not sufficient to show that he was conscious of their presence
. . . ."37 The physical contact tended "to make
knowing possession more likely, but without evidence that Nevils
was aware of the weapons' presence, this fact was not
enough."38 Consequently, the Nevils I panel
reversed Nevils's conviction due to insufficient evidence as to his
knowing possession.39

The U.S. Supreme Court's per curiam opinion in
McDaniel v. Brown on January 11, 2010 cast doubt upon the
soundness of Nevils I.40 Regarding the Ninth Circuit's
application of the Jackson standard, discussed more fully
in Part II, the Supreme Court in McDaniel wrote, "The
Court of Appeals acknowledged that it must review the evidence in
the light most favorable to the prosecution, but the court's
recitation of inconsistencies in the testimony shows it failed to
do that."41 An open approach to the evidence, like the
one criticized in McDaniel, expands an appellate court's
role because it will inevitably cause the appellate court to
consider questions traditionally reserved for the trier of fact,
such as "resolving conflicts in the testimony, . . . weighing
the evidence, and . . . drawing reasonable inferences from basic
facts to ultimate facts."42 The Nevils I panel
attempted to expand the appellate court's role in a fashion similar
to the Ninth Circuit decision reversed in
McDaniel.43 Although the Court in McDaniel
referred to a different Ninth Circuit decision and a separate set
of facts, there is little doubt that the McDaniel decision
strongly influenced the en banc rehearing of Nevils's case, decided
only two months later on March 19, 2010.44

On rehearing, the en banc court went through a short and
straightforward narrative of the evidence, as the government had
argued it in Nevils I.45 The court then held that "this
evidence, construed in favor of the government, raises the
reasonable inference that Nevils was stationed in Apartment 6 and
armed with two loaded firearms in order to protect the drugs and
cash in the apartment when he fell asleep on his
watch."46 Having made this inference, the court
concluded that "a rational juror could find beyond a reasonable
doubt that Nevils had knowledge of the weapons in his
possession."47

II. The Conflicting Applications of Jackson in Nevils I and Nevils II

The key difference between the Nevils I panel
and the Nevils II court lies in their application of the
standard of appellate review.48 Both agreed that the standard laid down by
the U.S. Supreme Court's 1979 decision in Jackson v.
Virginia governed Nevils's insufficiency of evidence
claim.49 Thus the troubling question is how the
Nevils I panel examined essentially the same facts and
employed the same legal standard as the Nevils II court,
but reached an entirely different result.50

Both cases are governed by the standard set forth in
Jackson.51In Jackson, the Supreme Court held
that when reviewing an insufficiency of evidence claim, "the
relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt."52 Embedded within that holding are
two critical steps.53 First, the court must resolve all conflicts
in the evidence in favor of the government.54 Second, the court
must ask whether "any rational trier of fact" with such a
view of the evidence could have found the defendant guilty beyond a
reasonable doubt.55 A court does not ask "whether it
believes that the evidence at the trial established guilt beyond a
reasonable doubt."56 Even if certain inferences are possible and
even if the prosecution's inference does not affirmatively appear
in the record, a reviewing court must assume that the "trier of
fact resolved any such conflicts in favor of the
prosecution."57 The test is designed to place the
responsibility for determining all facts in the hands of the trier
of fact.58

Before Jackson, the standard set forth in
Thompson v. Louisville, a 1960 U.S. Supreme Court case,
governed insufficiency of evidence claims.59 In
Thompson, the Court held that a conviction based on no
evidence whatsoever would be constitutionally
problematic.60 Eighteen years later in Jackson,
the Court found that this "'no evidence' rule" was "simply
inadequate to protect against misapplications of the constitutional
standard of reasonable doubt" because even a "mere modicum" of
relevant evidence could uphold a conviction.61 If any amount of
evidence, no matter how small, could satisfy the Thompson
standard, it was obviously divorced from any relation to reasonable
doubt.62 Although the Jackson standard may
seem to favor the government disproportionately, it in fact
increased protection from convictions based on insufficient
evidence by focusing the inquiry on reasonable
doubt.63

The court in Nevils I did not exactly apply the
Jackson standard, but rather a modified version of
Jackson found in the 1992 Ninth Circuit case United
States v. Vasquez-Chan.64 In Vasquez-Chan, the
Ninth Circuit reversed the defendants' convictions for conspiracy
to possess with intent to distribute five kilograms or more of
cocaine because the court determined that the proof was "based in
large part on their mere proximity to the drugs," which was a
"legally insufficient basis for a rational jury to conclude beyond
a reasonable doubt that they were guilty . . . ."65 Although
Vasquez-Chan used the language of Jackson, the
Nevils I panel used Vasquez-Chan to create a
different standard than that set forth in Jackson: "When
there is an innocent explanation for a defendant's conduct as well
as one that suggests that the defendant was engaged in wrongdoing,
the government must produce evidence that would allow a rational
jury to conclude beyond a reasonable doubt that the latter
explanation is the correct one."66 Using this standard, the
Nevils I panel, without giving a possible innocent
explanation, held that Nevils's "'mere presence' and gang
affiliation" did not constitute sufficient evidence for a rational
jury to infer knowing possession beyond a reasonable
doubt.67 This ultimate conclusion did not rely on
language from Jackson, which is mostly deferential to the
government, but rather on the "innocent explanation" rule of
Vasquez-Chan, which imposed a new burden on the government
not found in Jackson.68

Judge Jay Bybee's spirited dissent in Nevils I
attacked the majority's problematic approach to
Jackson.69 He emphasized that the burden imposed by
Jackson is "extraordinarily high," that "ample
circumstantial evidence" supported the jury's verdict beyond a
reasonable doubt, and that any explanation other than guilt was
"extraordinarily implausible."70 Judge Bybee posited two possible
"innocent explanations" implied by the court's
decision.71 The first was that Nevils, drunk and
asleep, was brought into Apartment 6.72 Then, somehow
without waking Nevils, one or more unknown persons entered
Apartment 6 with cash, drugs packaged for sale, a cell phone and
two loaded firearms, each with a round chambered.73 The persons
decided to leave the firearms on top of and against the
still-sleeping, still-drunk Nevils, along with items of enormous
value next to him.74 The second theory is that the drug dealers
abandoned all of these items on purpose.75 As Bybee
described it: "They set up a scarecrow of sorts-arming the
unconscious Nevils and propping him up on the couch to look
menacing. This plan, of course, was foiled by the arrival of the
police, who weren't impressed with the sleeping
Nevils."76 Because the majority did not specify any
possible innocent explanations, it could not directly answer the
dissent's characterization of the possibilities.77 For Bybee, the
absurdity of these innocent explanations demonstrated that a
reasonable juror in fact could have found Nevils guilty beyond a
reasonable doubt.78 That conclusion would mean that the
government had satisfied the Jackson standard and that the
Nevils I panel should have affirmed the
conviction.79 Bybee's dissent proved prescient because he
criticized the same misapplication of Jackson corrected by
McDaniel v. Brown and Nevils II.80

In the Ninth Circuit's en banc rehearing of Nevils's
case, the penitent court recited facts almost identical to those of
Nevils I, though it mentioned the chambered round, a
detail that had only appeared in Judge Bybee's dissent in
Nevils I.81 The Jackson standard was quoted
again, but gone was the emphasis on "mere proximity" and the new
duty from Vasquez-Chan that an innocent explanation
required the government to prove that the guilty, and not the
innocent, explanation was correct.82 In fact, the
court emphasized that the government did not need to "rule out
every hypothesis except that of guilt beyond a reasonable
doubt."83 Unlike the Nevils I panel, the
Nevils II court would not second-guess the jury's
assessment of the testimony of Nevils's companion that he had
entered the apartment without any firearms and was asleep until the
police arrived.84 Although the government presented no
evidence that contradicted that claim, the jury was free to
disbelieve the witness, and Jackson forbade the appellate
court from assessing a witness's credibility.85 Thus on
rehearing, the Nevils II court did not examine her
credibility and assumed that the jury did not believe her
testimony.86 This deferential approach demonstrates the
court's embrace of McDaniel and rejection of the
Nevils I panel's application of
Jackson.87

To support its interpretation of the Jackson
standard, the Nevils II court cited the policy proposition
in Jackson that "a court of appeals may not usurp the role
of the finder of fact."88 Additionally, the court emphasized that the
reviewing court "may not ask whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt."89 The court plainly expressed that it now
understood Jackson to impose a high standard and that the
court ought not grapple in the dark for possible holes in the
government's proof.90

The Nevils II court recognized that the Ninth
Circuit "has struggled with the correct approach to construing
evidence at trial."91 Indeed, the court said it had "strayed from
its obligation under step one of the Jackson standard to
construe the evidence at trial in the light most favorable to the
prosecution."92 The Nevils II court traced this
mutation of the Jackson standard back to United States
v. Bishop, in which the Ninth Circuit in 1992 considered "the
evidence in favor of an innocent explanation" and then determined
whether that explanation was "equally or more reasonable than the
government's incriminating explanation."93 In light of
McDaniel, the Nevils II court then reviewed other
cases that followed Bishop and overruled all cases,
including Vasquez-Chan, that construed evidence in favor
of innocence rather than in favor of the prosecution, and ordered
reversal if the innocent construction was as likely as the
government's.94

Despite purporting to apply the same legal standard, the
Nevils I panel and Nevils II court substantively
applied two different readings of
Jackson.95 On the one hand, the Nevils I
panel had loosely interpreted Jackson's requirement to
construe evidence in favor of the prosecution, continuing to
question pieces of evidence and look for alternate possibilities
that favored innocence instead of guilt.96 On the other
hand, the Nevils II court insisted that Jackson
forbade them from such an exploration of the
evidence.97 The narrowed inquiry of the Nevils
II court favored the government because it increased the
burden on Nevils to identify "evidence so supportive of innocence
that no rational trier of fact could find guilt beyond a reasonable
doubt."98 The court's deferential approach to the
jury's conviction of Nevils demonstrates a new reading of
Jackson for the Ninth Circuit, which restricts the
appellate court's role and makes reversals of convictions for
insufficiency of evidence much more
difficult.99

III. Insufficient Evidence Claims and the Trier of Fact's
Role in the Criminal Justice System

Appeals on the grounds of insufficient evidence demand
that the reviewing court determine its proper
role.100 Between conviction and appeal,
the burden of proof effectively shifts from the government to the
convicted defendant, and this recalibration largely shapes the
reviewing court's role.101 The meaning of "reasonable
doubt" does not change from trial to appeal, but the
Jackson standard, which controls appellate judges,
constricts their ability to find reasonable doubt and reverse a
conviction.102 If all evidence is viewed in favor of the
prosecution, no room remains for considering alternative
evidentiary interpretations or information not in the trial
record.103 The Supreme Court's own emphasis on
"any rational trier of fact" demonstrates that this was
not a process intended to allow frequent
reversals.104 Practically, to encourage finality and
efficiency in the judicial system, the application of
Jackson in Nevils II should result in fewer
reversals and less time spent reviewing appeals in the Ninth
Circuit.105

Beyond practical considerations, there is also a
jurisprudential rationale for narrowly reviewing appeals for
insufficient evidence.106 The determination of guilt is made by a
jury.107 The Constitution guarantees the right to
a jury for all criminal trials.108 There is still a role for
appellate courts, but the trier of fact, the trial judge, and the
appellate court each perform only the task for which each is best
suited.109 The trier of fact determines guilt or
innocence and their anterior questions of fact, like weighing
evidence or determining a witness's credibility, and the appellate
court stands ready to correct any errors of law that may have been
made at trial.110

The Nevils I panel likely did not believe it was
usurping the role of the trier of fact.111 One could
argue that the court actually made a decision of law because it
only applied the legal standard to the established
facts.112 That argument would be sophistic,
however, because the application of the legal standard to the facts
implies the weighing of evidence and the creation of a
narrative.113 Applying the legal standard, given to the
jury by the trial judge, to those factual conclusions is
essentially the jury's key duty.114 Any
interference with that process disrupts the jury's role in the
criminal justice system. Therefore, the standard to reverse a
conviction due to insufficient evidence should be difficult to
satisfy.115

When the reviewing court attempts to sort out the facts
of an entire trial, it can only look at strands of evidence and
cannot easily interpret the evidence as a whole or determine the
importance and credibility of testimony.116 For example,
the majority in Nevils I became so fixated on Nevils's
slumber and the testimony of a single witness of dubious
credibility that it ignored the tremendous amounts of
circumstantial and direct evidence tying Nevils to the
crime.117 In contrast, by properly applying
Jackson in Nevils II, the Ninth Circuit removed
itself from territory traditionally reserved for the jury and, as a
result, allowed the jury to make inferences from the
evidence.118

Conclusion

The Nevils I panel and the en banc court that
reheard the case in Nevils II both considered the
sufficiency of evidence of the petitioner's conviction for being a
felon in possession of firearms and ammunition. Both cases employed
the same test from Jackson v. Virginia, which called for
the court to view all evidence in the light most favorable to the
government and then ask whether any rational trier of fact could
have found the defendant guilty beyond a reasonable doubt. After
the first hearing of the petitioner's case, the Nevils I
panel decided that the evidence could not survive such an inquiry
because an innocent explanation was possible, but the en banc
rehearing determined that there had been sufficient evidence. The
majority in Nevils I erred because it usurped the role of
the trier of fact. By selectively examining the evidence and
positing alternate scenarios, the panel not only failed to follow
Jackson but also abandoned its duty to correct only errors
of law and encroached upon the jury's role as trier of fact.
Fortunately, the en banc court fixed this error. Although a
deferential review of the evidence may cause an occasional
injustice, it will, on the whole, preserve the principle that those
in the best possible position to judge the evidence, the triers of
fact, should make decisions of guilt and innocence.

24Nevils I, 548 F.3d at 805. Rule 29 provides for a motion
for acquittal if the court believes that the evidence is
insufficient to sustain a conviction; the defendant can move for
acquittal before or after submission to the jury. Fed. R. Crim. P.
29.

50See Nevils II, 598 F.3d at 1170; Nevils I, 548
F.3d at 811. Technically, Nevils I quoted not
Jackson, but United States v. Esquivel-Ortega and
United States v. Johnson. United States v.
Esquivel-Ortega, 484 F.3d 1221, 1225 (9th Cir. 2007); United States
v. Johnson, 229 F.3d 891, 894 (9th Cir. 2000). The language quoted
from these cases, however, was almost identical to
Jackson, and for the reader's ease, the "Jackson
standard" is referred to when discussing the legal standard used in
Nevils I.Jackson, 443 U.S. at 319.